The effect that section 21 of the Insolveny Bill has on persons married in terms of Islamic law - part 3

• Date: 01 January 2006
• Published date: 01 January 2006
• Author: N. Gabru
• Pages: 85-100
• DOI: 10.10520/EJC51196

N Gabru

The effect that section 21 of the

Insolveny Bill

has on persons

married in terms of Islamic law —

Part 3

1. Introduction

In the first part of this research, the purpose and goal of section 21 was discussed

taking into consideration the critique that surrounds section 21. The solvent spouse’s

right to apply for the release of propert was also considered. A brief discussion of the

Draft

Insolvency Bill

formed the concluding paragraph of part one of the research.

In the second part of the research, the constitutional implications of section 21 were

considered followed by a comparative study of some international jurisdictions,

followed by a discussion of Clause 22A of the Draft

Insolvency Bill

.

In this the final part of the research, the Islamic law and the principles of debt and

insolvency are analysed in paragraph two.Paragraph three contains the effect that

section 21 of the

Insolveny Act

has on Muslim spouses, which is followed by a solution

and a conclusion in paragraph four and five respectively.

2. The Islamic Perspective

2.1 An introduction to the Islamic law1

Islamic law is divine law since it is based on the totality of the commands of

Allah

2as embodied in the

Holy Qur'an

.3The most fundamental meaning4

and concept of Islam and Islamic law is

Tawhid

, which means belief in the

unity and oneness of Almighty God.

N Gabru, North-West University (Potchefstroom Campus).

1

Shari'ah

is the Arabic word used to denote the laws of Islam. Hereinafter

referred to as

Shari'ah

.

2 An Arabic word encapsulating the oneness and magnificent qualities of God

Almighty, one supreme being, God.

3 The

Qur'an

is the book revealed to the Prophet Mohammed (peace and

blessing be upon him). For consistency all

Qur'anic

references have been

taken from Abdullah Yusuf Ali's translation (Yusuf Ali 1977).

4 Meaning serving as a foundation or core, primary rule or principle.

86

Journal for Estate Planning Law 2006(1)

A further important aspect of the nature of Islamic law is that it is

inextricably intertwined with the belief system5and the moral values6of

Islam. The Islamic way of life advocates that the human being is the trustee

of

Allah

on planet earth and that the primary duty of every human being is to

fulfil God's trust.7As

Allah's

trustee, the human being lives his or her life

according to clearly established spiritual and moral values and principles.

These values and principles are found in the sources of

Shari'ah

.

The

Qur'an

describes the objectives of the

Shari'ah

as follows:8

O mankind, a direction has come to you from God; it is a healing for

the ailments in your hearts and it is a guidance and a mercy for the

believers.

The

Shari'ah

aims at safeguarding people's interest in this world and the

next.9In order to attain these objectives, the three primary objectives of the

Shari'ah

are to:

(a) educate the individual;

(b) establish justice (

Adl

or

qist

);

(c) consider the public interest (

maslahah

).

The second and third objectives are of particular interest.

Adl

literally

means placing things in the right place.The second objective is, therefore, to

establish a balance by fulfilling rights and obligations and by eliminating

excess and disparity in all spheres of life. This in essence is distributive

justice and social justice.The concept of justice character ises the

Qur'anic

message, for example, "When you judge between human beings, judge with

justice"10 and again, "When you speak, speak with justice".11

Elsewhere the

Qur'an

demands justice alongside benevolence (

ihsan

),

for example, "Surely

Allah

enjoins justice and doing good to others".12 The

juxtaposition of justice and benevolence opens the scope to considerations

of equity and fairness.

5 Aqidah.

6 Akhlaq.

7 Rautenbach and Goolam

Regspluralisme

in SA 15.

8 The

Qur'an

Chapter 10 verse 75.

9 Rautenbach and Goolam

Regspluralisme

in SA 15.

10 The

Qur'an

Chapter 4 verse 58.

11 The

Qur'an

Chapter 6 verse152.

12 The

Qur'an

Chapter 16 verse 90.